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Petitioners who Cannot Demonstrate a Sufficient Nexus To the Child Do Not Have Standing to Petition the Court for Guardianship – In re A.W.J., 2019 NY Slip Op 29328 (N.Y. Fam. Ct. 2019)


A guardian of a minor is a person appointed by the court to make decisions for a child in the event that the parents are unwilling, unavailable or unfit to care for the child.  While the court will typically appoint a family member or a close friend to be the guardian, according to Surrogate Court Procedure Act §1703, anyone can seek to become a guardian by petitioning Family Court.  The court will then hold a hearing to determine whether the petitioner is suitable and whether the appointment would be in the best interests of the child.  In the case of In re A.W.J, the Bronx County Family Court considered whether a petitioner who was a non-parent, a non-relative, and a non-caregiver had standing to petition for guardianship of a child.

The petitioner was a friend of the child who had spent some time with the child and had cared for the child a “handful” of times over the years.  The court denied her petition for guardianship concluding that there was not a sufficient nexus between the her and the child for the petitioner to have standing to petition the court to become the child’s guardian.

The courts have found that in order for a person to have a sufficient nexus that is required for standing, the petitioner must have a blood, marital, caretaking, or social relationship with the child.  Otherwise the person is basically a stranger.  The court distinguished between people who have a friendship relationships with children versus those who have caregiving relationships.  If the relationship is one of friendship, while the court would find it commendable that the person would want to become the guardian of the child, the court would likely find that the person would not have standing to seek guardianship.  An example of a “friendship” relationship would be a family friend who socialized with the parents regularly and, as a result, was frequently around the children so that the children have some familiarity with that person.  While this person would not be considered a stranger in the literal sense, the person would not have a close enough nexus with the child to have standing to become the child’s guardian.  Citing Matter of Roland F. v. Brezenoff, 108 Misc 2d 133 (1981), the court noted that it is not enough for the person to have taken care of the child “from time to time,” or to have merely known the child for a number of years.

On the other hand, a caregiving relationship exists when the petitioner had actual responsibility for the care of the child with some consistency over a period of time.  Having babysat for the child a few times over several years would not be enough to establish a caregiving relationship.  Standing has been found in cases where the petitioner had cared for the child on more than an occasional basis.  For example, if a friend of a mother took in the mother’s kids and cared for them for an extended period after the mother passed away, the relationship would be more than a friendship, but a caregiving and almost maternal relationship.  Under those circumstances, the court would likely find that the petitioner had standing.

While Surrogate Court Procedure Act §1703 states that, “A petition for appointment as a permanent guardian of an infant or child may be brought by any person on behalf of the infant or child,” the court refuses to give the text a literal interpretation.  Instead, in order to protect children, the court has the obligation to apply a commonsense interpretation of the language of the statute. Thus, only those who can demonstrate a sufficient nexus to the child will have standing to petition the court for guardianship.

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